Changes coming for minimum wage, unemployment insurance

By Anthony P. Raimondo

2014 brings a number of changes that dairy producers should be aware of as they plan their labor costs and management plan. This article focuses on federal laws that are changing, but dairy farmers should also be aware of what is coming in their home states.

Minimum Wage. California raised its minimum wage dramatically this year, and it appears that Congress may follow with a federal minimum wage increase of its own. The Fair Minimum Wage Act of 2013, calling for a federal minimum wage increase to $8.20 after three months, $9.15 after one year, and $10.10 after two years. The bill will also link minimum wage to the Consumer Price Index, which will trigger future, automatic increases in minimum wage. Monitor this bill closely.

EEO Changes. Changes to the Vietnam Era Veterans’ Readjustment Act (VEVRAA) will take effect in March 2014, including changes to how protected veterans are defined under the law. The federal government has announced that a new poster will be released in 2013.

Affordable Care Act (Obamacare). Employers have been required to provide all employees with notices regarding rights concerning the insurance marketplaces on October 1, 2013, or within 14 days of an employee’s start date for employees hired after October 1. All employers subject to the FLSA are required to provide the notice.

Employers must provide the notice to each employee, regardless of plan enrollment status (if applicable), or of part-time or full-time status, but not to dependents. The notice must be provided in writing, but may be provided electronically through procedures established by the US DOL. In September, the DOL announced that it would not fine employers who failed to comply with the October deadline, but employers should comply in order to avoid the risk of fines in the future.

Unemployment Insurance. Congress went into recess without extending unemployment benefits, meaning that long term benefits expire as of December 28, 2013. It is possible that Congress could enact a retroactive extension after the first of the year.

In 2011, Congress required states that receive federal funds to amend their unemployment insurance programs to require employers to respond to state EDD inquiries and to risk fines for failing to do so. Although there has not been aggressive enforcement in this area, employers should be aware that they may risk fines if they fail to respond to state inquiries on UI claims. In most states, employers can no longer receive credit for overpayments if they fail to provide information to the state in a timely manner.

Some states, including New York, have begun taking severance pay into account when processing UI claims, which can result in delays to employees who receive severance pay when they leave the job. Employers who utilize severance packages should be aware of the law in their particular state.

The end of the year presents an excellent opportunity to check posters to make sure they are current, and to review practices to ensure compliance.

The goal of this article is to provide employers with current labor and employment information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno at (559) 433-1300.

While advisors, educators and accountants are important members of your management advisory teams, it is still the dairy that has to get the job done. And that includes your I-9 forms.

By Chuck Schwartau, University of Minnesota Extension

A rather well known comedian has the line "Git’er done" as his trademark. I think what he is generally saying is that when a task needs to be done, don’t spend a lot of excess time analyzing the whole thing, just dig in and get it done. Sometimes a task needs significant planning for accuracy and efficiency, but sometimes you just need to get the job done. I was reminded of this at a recent dairy advisory team meeting.

This farm has taken advantage of an advisory team program for several years and has used it well to consider expansion plans, facility improvements, nutrition options and general management questions. One frequent discussion topic is the workforce, including regular mention of proper documentation for all employees and I-9s in the files. As an advisory team and educators, we have done all we should to help this farm be successful. While finances are sometimes tight as on many farms, great facility improvements have been made, production is excellent, herd management is top of the line and things are going rather well.

A recent incident on the road between farmsteads triggered a major headache for the farm, though. A routine traffic stop to question a license plate triggered much more when the officer decided to ask additional questions of the immigrant employee. The expanded investigation resulted in a call to Immigration and Customs Enforcement (ICE) and their involvement.

ICE asked the farm for I-9s on all of their employees. The farm was unable to produce a satisfactory, complete file of I-9s. ICE is continuing its investigation and at some point will determine the penalty it may levy against the farm. The size of a penalty will depend on the number of employees who have missing records and whether ICE thinks the farm knew some of these employees were improperly documented. All the farm can do is wait and hope the fine is not too large. Experience in other parts of the country suggests that fines could be quite significant if the ICE so decides.

One lesson in this incident is that as a farm business, it is still up to you to take the action. A fact of life today is that getting proper documentation and keeping proper records on employees is just as important as delivering feed to the cows and getting them milked every day.

The second lesson is that while advisors, educators and accountants are important members of management advisory teams, it is still the farm that has to get the job done.

An I-9 document is not a difficult one to obtain or fill out. The form itself is available from a number of websites free of charge. Just be sure you are using the current version that was released in March 2013. (Find it here.) The form has complete instructions as well as the actual document to be filled out and retained. The document has three sections. The employer should fill out Section 1 the first day the employee works for you. This establishes the identity of the employee and their knowledge of needing to provide proper documents to establish their right to work in the U.S.

Section 2 is where the employer verifies they have viewed documents provided by the employee that establish their right to be employed. The form provides a list of acceptable documents. Never tell the employee what documents to provide; just give them the list of acceptable documents and let them decide what to provide. View original documents (no photocopies are allowed), do your best to determine their authenticity, and record all documents on the I-9. Finally, have the employee sign the document and put it in your files. This must all be completed within the first three days of employment for all employees, regardless of citizenship status.

The third section of the form is used if the employee ever leaves your farm and then returns at some future date.

With a little luck, you will never have to take that I-9 out for any reason other than to purge your files long after the employee has left your farm. If ICE ever questions your employees’ right to work, you have the documentation to show your best efforts to determine their legality. It may be tempting to keep a photocopy of the documents you were offered by the employee, but most advisors today suggest against it.

The bottom line in this whole process is to do what the comedian suggests, "Git ‘er done!"

Chuck Schwartau is Southeast Regional Director with the University of Minnesota Extension. Contact him at cschwart@umn.edu or 507-536-6301.